In the State of Texas, alimony (also called spousal maintenance) is often misunderstood. Alimony has evolved over the decades, and while it is no longer a given, it can play an important financial role in some divorces. Alimony is a complicated matter that addresses the financial discrepancies that ex-spouses can experience post-divorce, and understanding the legal basics can help you get a feel for the role that alimony may or may not play in your own divorce.
A Financial Imbalance
The intention behind alimony is to help provide a financial balance between both parties to a divorce. When a divorce leaves one spouse facing a financial setback, and the other spouse has the financial capacity to help, the court may order alimony (typically in the form of monthly payments). There are, however, a considerable number of factors that go into this determination. Alimony can be awarded for the financial imbalance one spouse experiences while the divorce is pending and/or for his or her post-divorce financial situation.
While either spouse can petition the court for alimony during the course of the divorce, alimony is only applicable when one spouse will have too few assets at the time of divorce to provide for his or her own basic needs (within the context of the lifestyle he or she was living within the marriage). In addition to this requirement, however, one of the following circumstances must be present:
The couple has been married for at least ten years.
The spouse who is seeking alimony is unable to support himself or herself financially due to a physical or mental disability that leaves him or her incapacitated.
The spouse who is seeking alimony is prevented from working outside the home as a result of him or her being the primary custodial parent of a child who requires ongoing and substantial care and/or supervision due to a physical or mental disability.
The spouse who is being requested to pay alimony was convicted of family violence against the spouse who is seeking alimony and/or their shared children within two years of filing for the divorce (or while the divorce is pending).
The Court’s Starting Position
The court addresses every divorce from the position that alimony is inappropriate. In other words, in order to receive alimony post-divorce, the spouse requesting it must be able to show the court that he or she has put forth the effort necessary to become financially independent while the divorce was in process but that his or her good faith efforts failed to accomplish this goal. Once this requirement is met, the court will move forward with an evaluation for alimony.
The Factors Involved
If the court finds that an evaluation for alimony is appropriate, it will employ a wide range of factors to make the final alimony determination. These factors include:
The length of the marriage
Each spouse’s financial ability to provide for his or her own reasonable needs post-divorce
Each spouse’s level of education and employment skills
The amount of time the spouse requesting support needs to acquire the education or training necessary to become financially independent
Each spouse’s age, employment history, earning potential, and physical and emotional health
Whether either spouse wasted, gave away, hid, or otherwise disappeared marital property (those assets acquired over the course of the marriage) during the divorce process
If the spouse with the child support obligation has the ability to meet his or her own needs while making the child support payments
Whether the spouse who is requesting child support contributed to the other’s education or otherwise helped increase his or her earning potential over the course of the marriage
Each spouse’s separate property (those assets brought into the marriage by either spouse and kept separate throughout the marriage)
Any contributions the spouse requesting alimony made to the marriage in relation to parenting and homemaking
Any marital misconduct, which can include adultery and/or cruelty that played a role in the marriage (a spouse who is eligible for alimony but is proven to have committed adultery can be denied financial support)
Any history or pattern of family violence involved in the marriage
Alimony without a Definite End
In Texas, the courts are required to follow careful guidelines that determine the duration of alimony. There are, however, situations in which alimony can be ordered indefinitely. Consider the following:
If an ex-spouse receives alimony that is based on his or her inability to become financially independent due to a physical or mental disability, alimony is unlikely to end unless the condition resolves itself.
If an ex-spouse receives alimony that is based on his or her inability to work outside the home due to a child’s extraordinary needs, alimony is unlikely to have an end date.
If the marriage was very long and the ex-spouse who receives alimony is beyond the age of forging a career, his or her alimony will likely be for an indefinite term.
Generally, alimony does have an end date. Alimony is intended to allow the recipient the time he or she needs to establish financial independence, and the law employs the following guidelines related to its duration:
If the divorcing spouses were married for more than ten years but less than 20, the duration of alimony is generally five years.
If the divorcing spouses were married for at least 20 years but less than 30, the duration of alimony is generally seven years.
If the divorcing spouses were married for more than 30 years, the duration of alimony is generally ten years.
Barring an extenuating circumstance, Texas courts order alimony for the shortest duration that is necessary to allow the spouse who receives it to become self-supporting.
The Termination of Alimony
Under certain circumstances, alimony is terminated prior to the court-ordered date. These include:
The spouse who receives alimony either remarries or begins living with a romantic partner
Either party dies
The court, upon review of the alimony order, modifies it
Until one of the above occurs, however, alimony orders remain in effect and can be enforced by the court.
The Amount of Your Alimony
Texas takes a unique stance in relation to alimony, and this is that it limits the amount of alimony that can be ordered. In Texas, alimony cannot exceed $5,000 per month and cannot amount to more than 20 percent of the payor’s average monthly gross income (whichever amount is less is the maximum for the alimony payments involved). Alimony is generally paid in monthly installments, and it can be garnished from the payor’s wages. An important note to make here is that if you and your divorcing spouse hammer out your own alimony terms, they are not bound by these same parameters.
Alimony that has been set by the court can be modified if a material and substantial change of circumstances have occurred since the earlier order was issued. Until a modification has been affected, however, the original order remains in effect. This means that if the payor experiences a significant change that affects his or her ability to pay alimony, he or she must continue to pay the alimony until it is modified by the court (after being requested to do so and after determining that a modification is in order).
When a Spouse Simply Does Not Pay
If your spouse is not paying the alimony that he or she has been ordered to, you will need to look to the court for remedy. The court has the power to compel your ex to pay alimony. Failing to follow a court order puts your ex in contempt of court, and the court can employ any of the following in response:
Fines and penalties
Retroactive payments (for any payments that were missed)
If the alimony is based on a contractual determination between the two of you that exceeds the state’s maximums, the court can enforce the contract but cannot hold the payor in contempt of court (due to the alimony amount not being court-ordered).
The Tax Implications of Alimony
The tax implications of alimony changed dramatically in 2019 when federal tax laws did an about-face. Prior to January 1 of 2019, payors could deduct the alimony they paid directly from their income (thereby reducing their tax obligation), and recipients of alimony were required to claim their alimony and to pay taxes on the income. For all alimony that is finalized after this date, however, those who pay alimony no longer receive a tax deduction, and those who receive alimony are no longer required to pay tax on it.
Your divorce will be utterly unique to you and your situation, and whether or not alimony will play a role is part of a balancing act that involves every divorce term that applies in your case.
The Division of Marital Property
Marital property refers to those assets that you and your spouse acquire as a married couple. It does not matter who makes the purchase or whose name is on it – if you obtained the property or other asset while married, it is marital property that will need to be divided equitably upon divorce. Equitably means fairly in relation to the circumstances of your marriage, and this is where that balance comes in. the court will take the division of your marital property into account in your alimony determination.
Separate property refers to those marital assets that each of you brings into the marriage with you and keeps separate over the years. Additionally, inheritances or gifts that either of you receives in your name only over the course of your marriage are separate property. If the spouse who is requesting spousal support has considerable separate assets, it can affect the court’s alimony determination. Conversely, if the spouse who is requested to pay spousal support has considerable separate assets, it can help move the needle in the direction of alimony payments.
The court will take the child support obligation in your divorce into careful consideration when determining alimony. Child support is calculated according to exacting state guidelines that take a wide variety of factors into consideration. The primary elements, however, include each parent’s income and the number of overnights each parent has with the children. All things being equal; however, the parent who is the higher earner is generally the parent with the child support obligation. If this payment affects the payor’s ability to support himself or herself, it can directly affect the alimony determination.
The Court’s Discretion
The court has considerable discretion when it comes to the assignment of alimony, and it can take whatever factors it deems relevant into its decision-making process. Generally speaking, the court will attempt to balance all the factors that it finds most important in the case at hand and will make a determination based on this balancing act. If one spouse is deemed to experience a financial downturn upon divorce that leaves him or her unable to support himself or herself financially, and the other spouse has the ability to help offset that downturn, the court will move forward from there in its determination of amount and duration.
Turn to an Experienced Killeen Divorce Attorney for the Professional Legal Guidance You Need
Divorce is always complicated, but when alimony is involved, it can be that much more so. Whether or not you are required to pay or are set to receive alimony will hinge on a multitude of factors. Because alimony can play such a significant role in your financial future, however, it is important to allow the matter the legal attention it requires. Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a trusted divorce attorney with a wealth of impressive experience helping clients like you obtain favorable divorce outcomes. For more information about how we can help you with your divorce-related concerns, please do not hesitate to contact us online or call us at 254-501-4040 today.